NORWICH AIRPORT STAFF, SPORTS & SOCIAL CLUB v MRS J TURNER [2000] UKEAT 1306_99_0706

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1306_99_0706Case No Appeal No. EAT/1306/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
NORWICH AIRPORT STAFF, SPORTS & SOCIAL CLUBAPPELLANTMRS J TURNERRESPONDENT
Before
Mr Recorder LangstaffDate 7 June 2000
[1]APPEARANCES For the Appellant MR D A JORDAN (Representative) MR RECORDER LANGSTAFF QC : This is a preliminary hearing in respect of an appeal which the Norwich Airport Staff, Sports & Social Club, through Mr Jordan, seek to bring against a decision made by a Chairman of the Norwich Employment Tribunals on 22 October, notified to him on 1 November 1999. The terms of that order were to change the title of the Respondent, in a claim which had earlier been brought by Mrs Turner against the "Norwich Airport Staff & Sports & Social Club", described as such, to:
"D A Jordan (Club Treasurer) c/o Norwich Airport Staff, Sports & Social Club"
[2]The complaint which Mr Jordan makes about that order is two-fold. He said, in a letter dated 12 November, that he had not had opportunity to seek legal advice before 1 November and wished to lodge an appeal against, not only the decision but the extremely uncooperative attitude of the Chairman of the Employment Tribunal.[3]Before us today Mr Jordan has accepted that the rules by which Employment Tribunals operate provide, in Rule 17 of the 1993 Employment Tribunals Rules, for a discretion which may be exercised at any time by a Chairman to amend the identity of the Respondent. He has also told us that he has had advice, which he accepts, that so far as the decision is concerned there is little that he can say to argue against it, that being the position in law. What he has said in the past is contained in a letter dated 16 October (to which I shall return later) which is this:
"My main argument against the T & G's line of reasoning is that if they, with their expert legal representatives, were unaware of the principle that an association could not be sued, but that I knew and kept quiet about it. How they came to this conclusion is beyond me. My profession is aviation and I would never presume that non aviation personnel could be expected to know all the legalities in my field. …"
[4]The background needs briefly to be sketched in. It is this, that Mrs Turner who was employed from 6 February 1991 until 31 December 1996 by an unincorporated association, a members' club known as the Norwich Airport Staff & Sports & Social Club, claimed upon the termination of her employment a redundancy payment and one was ordered in the sum of £693.78, before the Norwich Tribunal following a hearing on 24 July 1997.[5]Mr Jordan, who would have represented the club, did not attend the hearing before the Employment Tribunal and complained to this Employment Appeal Tribunal about the failure of the chair of the Tribunal to grant him an adjournment. He had applied before the hearing for one and that application had been rejected. His appeal to this Tribunal, which was made with the leave of His Honour Judge Hicks QC, was rejected on 19 January 1999 by a Tribunal chaired by His Honour Judge Wilson. The money however, it appears, has not been paid Mr Jordan tells us, because of his reservations about the correctness of the original claim.[6]It is against that background that Mrs Turner sought to amend the title of the Respondent so that the order made against an unincorporated association might be enforced. When that proposal was made the Chairman of the Norwich Tribunal wrote on 24 September 1999, inviting Mr Jordan to show cause why he should not be named as a Respondent. Mr Jordan replied in a letter of 2 October 1999 and the last paragraph of that letter informed the Employment Tribunal at Bury St Edmunds, which was conducting the correspondence, that he would be away week days until early November and was unable to obtain legal advice on the matter. In fact, he tells us today, he had spoken to a Solicitor before he wrote his next letter, which was 16 October 1999 and to which I have already referred.[7]The decision was then made on 22 October 1999 as I have recited. Mr Jordan's main complaint is that his own convenience or the lack of convenience was not taken into account by the Tribunal in reaching the decision which it reached.[8]However, whatever the position may be, it may have been that the Chairman having invited Mr Jordan to ask to make oral representations felt that if Mr Jordan had wished to do so, he would have asked to do so. It is common ground he did not. He has explained to us that he had not understood what oral representations consisted of. But, perhaps adding to the view that the Employment Tribunal must have taken of the matter, the letter of 16 October 1999 which Mr Jordan wrote, further to his letter of 2 October, makes no complaint about his unavailability to attend the Tribunal, makes no request for any hearing and, indeed, sets out an argument (described as his main argument) as to the substance of the hearing that would otherwise have taken place.[9]That argument, of course, takes him nowhere because it is not an argument about the justice of the decision but an argument about whether the other side ought to have made the application at an earlier stage. Anyone looking at that letter would have concluded that there was nothing to be gained, so it would seem, from having any further hearing or any further input from Mr Jordan because it was unlikely that there was any point he was going to make which would have changed or influenced the discretion which the Chairman was due to exercise.[10]We think that any challenge now to the exercise of the discretion cannot, therefore, succeed upon the basis that the discretion was wrongly exercised. We think that there is no basis for an appeal upon the basis that the Chairman refused a request for the attendance of Mr Jordan and, although it will come as some disappointment to Mr Jordan who has felt himself at some disadvantage in terms of time tabling compared to the Norwich Tribunal, we feel we have no alternative but to deny any permission for this appeal to go further. Accordingly, this appeal will be dismissed.